triggering the duty to preserve evidence

The Duty toPreserve Evidence

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1Aside perhaps from perjury, no act serves tothreaten the integrity of the judicial process morethan the spoliation of evidence. Our adversarialprocess is designed to tolerate human failings—erring judges can be reversed, uncooperativecounsel can be shepherded, and recalcitrant wit-nesses compelled to testfy. But, when critical docu-ments go missing, judges and litigants alikedescend into a world of ad hocery and half mea-sures—and our civil justice system suffers.1

Gathering factual information is at the “core of our civildiscovery system.”2 Consequently, there are rules regard-ing how information is to be preserved and produced incivil disputes. Courts first consider whether a duty to pre-serve evidence exists. To assess whether a duty exists,courts may consider: the conduct, event or information

1. United Medical Supply Co. v. United States, 77 Fed. Cl.257, 259 (Fed. Cl. 2007).

2. The Sedona Conference, The Sedona Conference Commen-tary on Legal Holds: The Trigger and The Process (hereinafter TheSedona Conference Commentary on Legal Holds), 11 SEDONA CONF.J. 266, 267 (2010), available at http://www.mad.uscourts.gov/bbc/pdf/EDISCSedonaConferenceLegalHolds.pdf.

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that may trigger a preservation obligation, to whom the preservationduty may extend, and the scope of the preservation obligation.

Answering these questions is critical to parties and their counsel inmaking timely decisions to safeguard data, documents, and tangibleevidence when litigation is filed, threatened, or is reasonably antici-pated. Likewise, attorneys bringing or defending claims in litigationmust appropriately supervise the preservation of evidence becausethe potential exposure to sanctions or tort claims for the loss of rel-evant data, documents or physical evidence can be substantial.

The duty to preserve documents, electronically stored informa-tion, or tangible evidence based on the existence of pending, threat-ened, or reasonably foreseeable litigation arises under the commonlaw. It also can arise from a number of other sources, including acontract, a voluntarily assumed duty, a statute or regulation, an ethicalcode, or another special circumstance.3 Yet, the duty to preserve is notexplicitly defined in the Federal Rules of Civil Procedure or in moststate rules of civil practice.4

APPLICABLE LAW

To determine whether and when a duty to preserve exists, a party mustdetermine what law applies to spoliation issues that arise during pend-ing litigation or in the context of an independent tort claim for spolia-tion. The forum in which spoliation occurs may have a substantialimpact on the remedies available to the non-spoliating party since theduty to preserve arises from independent sources of law and dependson the substantive law in a particular jurisdiction.5 State and federal

3. Trevino v. Ortega, 969 S.W.2d 950, 955 (Tex. 1998) (Baker, J., concur-ring); Boyd v. Travelers, Ins. Co., 652 N.E.2d 267 (Ill. 1995); Callahan v. StanleyWorks, 703 A.2d 1014, 1018 (N.J. Super. 1997). See also Victor Stanley, Inc. v.Creative Pipe Inc., 269 F.R.D. 497, 521 (D. Md. 2010).

4. The Sedona Conference Commentary on Legal Holds, supra note 2, at267.

5. The Honorable Paul W. Grimm, et al., Advanced Issues in Electronic Dis-covery: The Impact of the First Year of the Federal Rules and the Adoption of theMaryland Rules, 37 U. BALT. L. REV. 381, 389, n.36 (Spring 2008) (hereinafterAdvanced Issues in Electronic Discovery) (“Preservation obligations arise fromindependent sources of law and are dependent on the substantive law of eachjurisdiction.”).

The Duty to Preserve Evidence 3

courts disagree on the substantive law of spoliation and in some in-stances on which law applies.

State courts apply the substantive and procedural law of their stateto spoliation that occurs in litigation pending within that state. Federalcourts sitting in diversity must first consider whether spoliation thatoccurs during pending litigation is a substantive matter, to be gov-erned by state law, or a procedural matter, subject to federal law.6 Acourt analyzing the issue initially must determine whether the resultwould differ under federal or state law.7 If the result would be thesame, there is only a “false conflict” and the choice of law analysisends. If the result would differ, the court must then determine whichlaw applies.8

6. See, e.g., Nayokpuk v. United States, 848 F. Supp. 2d 1030 (D. Alaska2012) (applying Alaska substantive law to burden shifting discovery sanction);Rowe v. Albertson’s, Inc., 116 Fed. Appx. 171, 2004 U.S. App. LEXIS 20959(10th Cir. Oct. 7, 2004) (affirming a district court’s decision to apply Texas sub-stantive law to spoliation questions in a diversity case); Ward v. Texas Steak,Ltd., No. 7:03cv00596, 2004 U.S. Dist. LEXIS 10575 (W.D. Va. May 27, 2004)(applying Virginia law and stating, “When spoliation of evidence does not occurin the course of pending federal litigation, a federal court exercising diversityjurisdiction in which the rule of decision is supplied by state law is required toapply those spoliation principles the forum state would apply.”); American Fam-ily Ins. v. Black & Decker (U.S.), Inc., No. 3:00CV50281, 2003 U.S. Dist. LEXIS16245 (N.D. Ill. Sept. 16, 2003) (holding a party’s pre-suit duty to preserve evi-dence is a substantive rule of law requiring application of state law in a diversitycase); Keller v. United States, 58 F.3d 1194, 1197–98 (7th Cir. 1995) (applyingNew Mexico law and noting that in diversity actions courts are split regardingwhether state or federal law applies to the spoliation of evidence); Allstate Ins.Co. v. Sunbeam Corp., 865 F. Supp. 1267, 1278 (N.D. Ill. 1994) (holding thatwhether a plaintiff has a duty to preserve a defective product is a substantiveissue to be decided by state law); State Farm Fire & Cas. Co. v. Frigidaire, 146F.R.D. 160, 162 (N.D. Ill. 1992) (finding “pre-suit duty to preserve material evi-dence is substantive and is controlled by state law rather than federal law”);Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 364 (D. Mass. 1991) (explain-ing federal law controls regarding whether dismissal is proper for spoliation),approved and adopted, No. 881642MA, 1992 U.S. Dist. LEXIS 3758 (D. Mass.Jan. 23, 1992).

7. Toste v. Lewis Controls, Inc., No. C-95-01366-MHP, 1996 U.S. Dist. LEXIS2359, at *18 n.2 (N.D. Cal. Feb. 28, 1996); Baliotis v. McNeil, 870 F. Supp. 1285,1289 (M.D. Pa. 1994).

8. Id.

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Federal courts have split regarding whether state or federal lawgoverns sanctions for spoliation in a diversity suit.9 But the majorityof circuits have held that federal law applies.10 These courts note thatthe authority to impose sanctions for destruction of evidence arisesnot from substantive law, but rather “from a court’s inherent power tocontrol the judicial process.”11 They also consider a spoliation rulingevidentiary in nature, to which federal courts generally apply federalevidentiary rules in both federal question and diversity matters.12

The question of whether a duty to preserve evidence exists is aquestion of law for the court, but courts reviewing decisions sanction-ing spoliation have applied several standards of review to the questionof sanctions for failure to preserve evidence.13 For instance, the Fed-eral Circuit explained in Hynix Semiconductor Inc. v. Rambus Inc.,that it reviewed “the district court’s spoliation decision under the lawof the regional circuit as follows: de novo for the legal standard, clear

9. When a federal court has federal question jurisdiction, the “federal law ofspoliation will be applied.” Communities for Equity v. Mich. High School Ath-letic Ass’n, No. 1:98-CV-479, 2001 U.S. Dist. LEXIS 16019 (W.D. Mich. Sept. 21,2001).

10. See, e.g., Sherman v. Rinchem Co., 687 F.3d 996, 1006 (8th Cir. 2012);Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (citing Silvestri v. Gen.Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)); Condrey v. SunTrust Bank ofGa., 431 F.3d 191, 203 (5th Cir. 2005) (“[F]ederal courts . . . apply federal eviden-tiary rules rather than state spoliation laws in diversity suits.”); Flury v. DaimlerChrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005); Hodge v. Wal-Mart Stores,Inc., 360 F.3d 446, 449–50 (4th Cir. 2004) (imposing sanction for spoliation isamong the court’s inherent power and the decision to impose sanctions is amatter of federal law). But see Keller v. United States, 58 F.3d 1194, 1197–98 (7thCir. 1995) (applying New Mexico law and noting that courts are split regardingwhether state or federal law applies in diversity actions, to the spoliation ofevidence); Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999);Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993).

11. Adkins, 554 F.3d at 652; Silvestri, 271 F.3d at 590 (citing Chambers v.NASCO, Inc., 501 U.S. 32, 45–46 (1991)).

12. Adkins, 554 F.3d at 652.13. Cockerline v. Menendez, 988 A.2d 575, 590 (N.J. Super. 2010) (holding

that the duty to preserve evidence is a question of law for the court) (citingManorcare Health Servs. v. Osmose Wood Preserving, Inc., 764 A.2d 475, 479(N.J. Super. 2001)). See Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336,1345 (Fed. Cir. 2011) (noting a de novo standard of review applies to a legalstandard).


error for the underlying facts, and abuse of discretion for the proprietyof the remedy.”14

There are a handful of states that recognize an independent tortclaim for spoliation of evidence, which allows a plaintiff who canestablish the requisite elements of this tort to recover money dam-ages.15 Most states, however, do not recognize either the tort of inten-tional or negligent spoliation. Therefore, if spoliation occurs in thesestates, the non-spoliating party’s remedies are limited to non-tort rem-edies, including civil or evidentiary sanctions.

Even then, disagreement exists about the proper analysis for spo-liation tort claims and for sanctioning spoliation in ongoing litigation.16

Not only does this absence of consensus create questions regardingthe scope of preservation obligations, it can contribute to the cost oflitigation.17

14. Hynix Semiconductor Inc., 645 F.3d at 1345 (citing Qualcomm Inc. v.Broadcom Corp., 548 F.3d 1004, 1019 (Fed. Cir. 2008)). See also Major Tours,Inc. v. Colorel, 720 F. Supp. 2d 587, 619 (D.N.J. 2010) (observing that “[t]o theextent that plaintiffs frame their appeal as an argument that no matter the othercircumstances, as a matter of law, a defendant cannot be granted a protectiveorder under 26(b)(2)(B) if the failure to institute a proper litigation hold was thecause of the inaccessibility, then the Court reviews this question of law de novo.. . . To the extent that plaintiffs are . . . arguing that, in this particular case, [themagistrate judge] gave insufficient weight to defendants’ culpability as one ofseveral factors, then this argument would be a challenge to the exercise of discre-tion.”).

15. See Hannah v. Heeter, 584 S.E.2d 560 (W. Va. 2003); Oliver v. StimsonLumber Co., 993 P.2d 11 (Mont. 1999); Smith v. Howard Johnson, 615 N.E.2d1037 (Ohio 1993). See generally Chapter 4.

16. For example, Illinois courts are split over whether to focus solely on theprejudice suffered by the non-spoliating party in determining the proper sanc-tion or whether also to consider the level of culpability of the party responsiblefor the destruction of evidence. Cf. H & H Sand & Gravel Co. v. Coyne CylinderCo., 632 N.E.2d 697 (Ill. App. Ct. 1994) (state of mind of spoliating party a factorto be analyzed) with Farley Metals, Inc. v. Barber Colman Co., 645 N.E.2d 964(Ill. App. Ct. 1994) (upholding dismissal of complaint based on prejudice andstating that “when crucial evidence is destroyed, the offending party’s intentbecomes significantly less germane in determining a proper sanction”); see alsoDavid A. Bell, et al., An Update on Spoliation of Evidence, 85 Ill. B.J. 530(1997); Victor Stanley, 269 F.R.D. at 521.

17. Victor Stanley, 269 F.R.D. at 517 n.24 (observing the “lack of a nationalstandard or even a consensus among courts in different jurisdictions about whatstandards should govern preservation/spoliation issues” and appending a list of

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No federal court has recognized an independent tort claim for spo-liation under federal law.18 At least two federal courts have rejected anattempt to assert a federal independent tort claim of spoliation basedon a federal regulation requiring retention of records.19 For example,in Lombard v. MCI Telecommunications Corporation,20 an Ohio dis-trict court held failure to comply with 29 C.F.R. § 1602.14, a provi-sion that requires an employer to retain records relevant to a charge ofemployment discrimination, was not “actionable per se” because theregulation does not provide the employee with the right to sue fordamages. Rather, the court followed other decisions that establish theproper remedy for such a violation is imposition of a sanction, in thesecases a rebuttable presumption “that the destroyed document wouldhave bolstered [the plaintiff’s] case.”21

When available tort claims for spoliation are brought in federalcourt, they will be analyzed under applicable state law.22 Thus, it isessential that counsel facing a spoliation issue become familiar withthe law governing spoliation in the applicable forum.

standards applied in each circuit). Magistrate Judge Paul W. Grimm’s Memoran-dum, Order and Recommendation in Victor Stanley “attempt[s] to . . . providecounsel with an analytical framework that may enable them to resolve preserva-tion/spoliation issues with a greater level of comfort” by synthesizing the law ofMaryland, the Fourth Circuit and putting it in “the context of the state of the lawin other circuits.” Id. at 518.

18. Lombard v. MCI Telecomm. Corp., 13 F. Supp. 2d 621, 627 (N.D. Ohio1998). See also Catoire v. Caprock Telecomm. Corp., No. 01-3577, 2003 U.S.Dist. LEXIS 8812 (E.D. La. May 22, 2003) (rejecting claim for spoliation ofevidence noting the absence of a private cause of action for relief under 29 C.F.R.§ 1602.14); Silvestri, 271 F.3d at 590 (finding that “while the spoliation ofevidence may give rise to court imposed sanctions deriving from [its] inherentpower, the acts of spoliation do not themselves give rise in civil cases to substan-tive claims or defenses”).

19. See Lombard, 13 F. Supp. 2d at 627; Catoire, 2003 U.S. Dist. LEXIS8812.

20. 13 F. Supp. 2d 621.21. Lombard, 13 F. Supp. 2d at 628.22. Unigard Security Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363,

367 (9th Cir. 1992) (stating, in a strict liability/negligence case, that a spoliationcounterclaim brought in diversity is controlled by state law, but holding thatthere was no valid spoliation claim); Lewis v. J.C. Penny, Inc., 12 F. Supp. 2d1083, 1086 (E.D. Cal. 1998) (addressing the applicable law for a spoliation claimand holding that in a diversity action the legal issues are governed by the sub-stantive law of the forum state).


TRIGGERING THE DUTY TO PRESERVE EVIDENCE

There is no general duty to preserve evidence before litigation is filed,threatened, or reasonably foreseeable, unless the duty is voluntarilyassumed or imposed by a statute, regulation, contract, or another spe-cial circumstance.23 Absent notice of a governmental investigation,probable or pending litigation, or another source of a duty to preserveevidence, a company or individual generally has the right to disposeof its own property, including documents, electronically stored infor-mation, or tangible things, without liability.24

Sometimes a party will receive its first notice that particular docu-ments or things are relevant upon receipt of a complaint or documentrequests from an opposing party.25 To effectively trigger an obligation

23. Victor Stanley, 269 F.R.D. at 521 (“Absent some countervailing factor,there is no general duty to preserve. . . .” evidence); see also Hannah, 584 S.E.2dat 569; Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. 2003); Gilleski v.Community Med. Ctr., 765 A.2d 1103 (N.J. App. 2001); Kelly v. Sears Roebuck &Co., 720 N.E.2d 683 (Ill. App. Ct. 1999). See, e.g., Distefano v. Law Offices ofBarbara H. Katsos, PC, No. CV 11-2893 (JS)(AKT), 2013 U.S. Dist. LEXIS 47036,*16-18 (E.D.N.Y. Mar. 29, 2013) (concluding that the duty to preserve was trig-gered when client discharged counsel and noting that the Second Circuit hasheld that in certain circumstances, “a regulation can create the requisite obliga-tion to retain records,” even where litigation involving the records is not reason-ably foreseeable) (internal citations omitted); Martin v. Keeley & Sons, Inc., 979N.E.2d 22 (Ill. 2012) (noting that a voluntary undertaking requires a showing ofaffirmative conduct by the party evincing its intent to voluntarily assume a dutyto preserve evidence, and that a mere opportunity to exercise control over evi-dence is insufficient to establish a special relationship that would establish aduty to preserve it); but see Powers v. S. Family Mkts. of Eastman, LLC, No.A12A2382, 2013 Ga. App. LEXIS 212 (Ga. Ct. App. Mar. 18, 2013) (holding thatmerely contemplating potential liability and completing an accident report afteran investigation do not demonstrate contemplated or pending litigation).

24. See, e.g., Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)(“It goes without saying that a party can only be sanctioned for destroying evi-dence if it had a duty to preserve it.”); Coleman v. Eddy Potash, Inc., 905 P.2d 185,191 (N.M. 1995) (“We hold that in the absence of such a circumstance [requiring aduty to preserve evidence], a property owner has no duty to preserve or safeguardhis or her property for the benefit of other individuals in a potential lawsuit.”).

25. Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991);see also Jarmak v. Ramos, No. 6:10-cv-00048, 2011 U.S. Dist. LEXIS 75304(W.D. Va. July 13, 2011) (refusing to sanction alleged spoliation where evidencedisposed of long before any knowledge of complaint, much less any injury froma broken hammock rope). Discussing when a defendant’s duty to preserve evi-dence arose in a claim for copyright violation, one court explained:

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to preserve, the complaint must allege facts describing the conductthat affords notice to the party in possession of evidence.26 Of course,parties to litigation should promptly request relevant records and docu-ments from the opposing party so that unexplained laxness does notundercut a claim of harm from a later failure to produce. In caseswhere “a party has had an opportunity to pursue discovery but has notaggressively done so, the courts have gone so far as to hold that thesubsequent improper destruction of relevant evidence by the otherside should not trigger any spoliation sanctions.”27

On the other hand, the duty to preserve potentially relevant evi-dence may arise before the commencement of a lawsuit if it is reason-

All reasonable inferences lead inexorably to the conclusion that[the defendant] must have been aware that [plaintiff’s] source codewould be the subject of a discovery request long before it stoppeddestroying older versions, . . . It is inconceivable that after the [pre-litigation] meeting, [defendant] did not realize that the software inits possession would be sought during discovery. Certainly, com-mencement of the action settled any doubts. Thereafter, the requestfor production, followed by the motion to compel, provided repeated,insistent reminders of the duty to preserve this irreplaceable evi-dence. Yet the destruction proceeded. . . . Even assuming that main-tenance of only a single, updated version of the source code was, inother circumstances, a bona fide business practice, any destructionof versions of the code [20 days after service of the complaint] couldnot be excused as a bona fide business practice.

Computer Assocs. Int’l, Inc. v. American Fundware, Inc., 133 F.R.D. 166, 169 (D.Colo. 1990).

26. Kelly, 720 N.E.2d 693; see also Valentine v. Mercedes-Benz Credit Corp.,No. 98 Civ. 1815, 1999 U.S. Dist. LEXIS 15378 (S.D.N.Y. Sept. 30, 1999).

27. Saul v. Tivoli Systems, Inc., No. 97CV2386 (DC) (MHD), 2001 U.S.Dist. LEXIS 9873, at *50 (S.D.N.Y. July 17, 2001). See also Gaffield v. Wal-Mart Stores East, LP, 616 F. Supp. 2d 329, 338 (N.D.N.Y. 2009) (denying spolia-tion sanctions where plaintiff could have inspected bicycle in the nearly twoyears between the accident and filing of complaint); Allstate Ins. Co. v. HamiltonBeach/Proctor Silex, Inc., 473 F.3d 450, 457–58 (2d Cir. 2007) (refusing toimpose sanctions where the party “affirmatively disclaimed any interest in theevidence . . . after being provided a full opportunity to inspect the items.”);Klezmer v. Buynak, 227 F.R.D. 43, 52 (E.D.N.Y. 2005) (denying sanctions forfailure to preserve maintenance records for ATV where plaintiff never requestedinspection of ATV itself); Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423,435–36 (2d Cir. 2001).


ably foreseeable that a lawsuit will be filed.28 It matters not whether“an organization is the initiator or the target of litigation,”29 the com-mon law duty to preserve evidence arises at “the moment that litiga-tion is reasonably anticipated.”30 The situation can arise, for example,if an individual or an organization plans to initiate litigation, a poten-tial defendant receives a demand letter, a company learns that a formeremployee is seriously contemplating a lawsuit, or if an event or othercircumstance would reasonably put an organization or an individualon notice that a lawsuit is likely to be filed.31

28. Chrysler Realty Co., LLC v. Design Forum Architects, Inc., No. 06-CV-11785, 2009 U.S. Dist. LEXIS 121411, *7–8 (E.D. Mich. Dec. 31, 2009) (cita-tions omitted) (“[T]he first step in the [sanctions] analysis is to determine the‘trigger date,’ or ‘the date a party is put on notice that it has a duty to preserveevidence. . . . Any destruction of potentially relevant evidence that occurs beforethe trigger date would be harmless, since the party was unaware of a need tosafeguard evidence. The destruction of documents and evidence after the triggerdate, however, is not allowed.”); EEOC v. New Breed Logistics, No. 10-2696STA/TMP, 2012 U.S. Dist. LEXIS 136534 (W.D. Tenn. Sept. 25, 2012) (same). Seealso Fujitsu Ltd., 247 F.3d at 436; Kalumetals, Inc. v. Hitachi Magnetics Corp.,21 F. Supp. 2d 510, 520 (W.D. Pa. 1998); Howell v. Maytag, 168 F.R.D. 502, 505(M.D. Pa. 1996); Shaffer v. RWP Group, Inc., 169 F.R.D. 19, 24 (E.D.N.Y. 1996);Moyers v. Ford Motor Co., 941 F. Supp. 883, 884 (E.D. Mo. 1996); Baliotis v.McNeil, 870 F. Supp. 1285 (M.D. Pa. 1994).

29. Victor Stanley, 269 F.R.D. at 521–22 (citing The Sedona ConferenceCommentary on Legal Holds 3 (pub. cmt. ed. Aug. 2007 )). See, e.g., EEOC v. JPMorgan Chase Bank, N.A., No. 2:09-cv-864 2013 U.S. Dist. LEXIS 27499 (S.D.Ohio Feb. 28, 2013) (focusing on the pre-lawsuit events that triggered a bank’sduty to preserve data and suspend its automatic purging process, including anotice from the EEOC that it was investigating class allegations and a request forinformation from the commission); Pension Comm. of the Univ. of MontrealPension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 466 (S.D.N.Y. 2010)(“A plaintiff’s duty is more often triggered before litigation commences, in largepart because plaintiffs control the timing of litigation.”); Innis Arden Golf Clubv. Pitney Bowes, Inc., 257 F.R.D. 334, 340 (D. Conn. 2009) (finding a potentialplaintiff anticipates litigation when counsel is retained for the matter).

30. Hynix Semiconductor Inc., 645 F.3d 1336; Micron Tech., Inc. v. RambusInc., 645 F.3d 1311 (Fed. Cir. 2011); Victor Stanley, 269 F.R.D. at 521.

31. See, e.g., Hynix Semiconductor Inc., 645 F.3d 1336; Micron Tech., 645 F.3d1311 (sanctioning organization that destroyed documents while strategically plan-ning for specific litigation); Stevenson v. Union Pac. R.R. Co., 364 F.3d 739 (8thCir. 2004) (sanctioning railroad because it destroyed evidence similar to what itpreviously had used to its advantage in another case, after an accident but beforelitigation commenced); see also Powers v. S. Family Mkts. of Eastman, LLC, No.

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For example, in Ferrel v. Connetti Trailer Sales, Inc.,32 plaintiffsfailed to bring a motor home to a service center for inspection andnecessary repairs, as requested by the dealer. The dealer had offeredto pick up the motor home, transport it to another state for inspectionand return it to plaintiffs at no charge, but the plaintiffs refused. On atleast four or five occasions the manufacturer had requested an oppor-tunity to inspect and repair the vehicle while plaintiffs still owned it,but each time they refused the inspection requests.

The Ferrel court criticized plaintiffs for surrendering the vehicle tocreditors when they were planning a lawsuit regarding the defectiverepairs and had threatened to file a lawsuit several times. The manu-facturer and dealer pointed to Rhode Island law that gave them theright to inspect or test goods, a right that plaintiffs violated when byrebuffing their requests to inspect the vehicle. The court noted thatplaintiffs were aware of the potential relevance of the motor home, yetrefused to allow the manufacturer or the dealer to inspect it. As a re-sult, the court precluded all evidence of defective repairs.

On appeal, the Rhode Island Supreme Court reversed, finding thatthe trial court had gone too far in precluding all evidence of the defec-tive repairs. Instead, the court remanded the case for a new trial allow-ing plaintiffs to introduce evidence of defective repairs and permittingdefendants to rebut this evidence “as best they can.” The Rhode Is-land high court also instructed the trial court that because plaintiffs’

A12A2382, 2013 Ga. App. LEXIS 212 (Ga. Ct. App. Mar. 18, 2013) (holdingthat merely contemplating potential liability and completing an accident re-port after an investigation do not demonstrate contemplated or pending litiga-tion); YCB Int’l, Inc. v. UCF Trading Co, No. 09 C 7221, 2012 U.S. Dist. LEXIS104875, *9–10 (N.D. Ill. July 25, 2012) (finding an email sent by a companyofficial to a supplier 10 months before litigation commenced put a supplier onnotice of the potential litigation and triggered its duty to preserve documentsbecause the supplier has a central role in supplying the bearings that plaintiffused to fulfill its obligations under the contract); Ervine v. S.B., No. 11 C 1187,2011 U.S. Dist. LEXIS 24937 (N.D. Ill. Mar. 10, 2011) (a duty to preserveextends to third parties who should have known evidence may be relevant infuture lawsuits); A. Benjamin Spencer, Symposium: Civil Procedure and theLegal Profession: The Preservation Obligation: Regulating and SanctioningPre-Litigation Spoliation in Federal Court, 79 FORDHAM L. REV. 2005, 2008(Apr. 2011) (citing cases) (observing that a pre-litigation hold request, a de-mand letter or similar correspondence, such as a cease and desist letter or a curenotice, may trigger the duty to preserve).

32. 727 A.2d 183 (R.I. 1999).


conduct caused the motor home to be unavailable for inspection thejury could infer that if the manufacturer and dealer had been allowedto conduct an inspection, they would have discovered evidence show-ing the repairs were not defective. The Ferrel case illustrates the im-portance of taking steps to locate missing evidence and tracing it tothird parties to the extent necessary, as well as cooperating in anyrequested inspection by a potentially adverse party.33

Pre-litigation discussions or requests to inspect, or a history ofprevious litigation arising out of similar events or circumstances cantrigger a duty to preserve relevant evidence.34 As one court explained:

When a party may be deemed to be on notice [that evidencemay relevant to future litigation] is a function of the variablechronologies along which issues develop in a lawsuit. Thus,in one case it may be a discovery request, in another the com-plaint, in still another correspondence prior to the filing of acomplaint, that puts a party on notice that material in its cus-tody is, or reasonably should be considered, admissible evi-dence which the party has a legal duty to preserve.35

33. Id. Another example of pre-litigation conduct that triggered a duty topreserve is Sanchez v. Stanley-Bostitch, Inc., No. 98 Civ. 0494, 1999 U.S. Dist.LEXIS 12975 (S.D.N.Y. Aug. 23, 1999). There, counsel directed plaintiff to takephotographs of an allegedly defective pneumatic staple gun in anticipation of alawsuit. Neither plaintiff nor counsel notified the manufacturer about the poten-tial claim. Nor did they identify the allegedly defective product for the manufac-turer before it was lost. The court held that because plaintiff knew litigation waspossible and had retained counsel, he had an obligation to preserve the evidencefinding that even though plaintiff did not have possession of or exercise controlover the staple gun, he could have informed the manufacturer of the potentiallawsuit and asked his employer to preserve it for future inspection. Becauseplaintiff did not take these steps, the court imposed an adverse inference instruc-tion at trial. Id.

34. EEOC v. JP Morgan Chase Bank, N.A., 2013 U.S. Dist. LEXIS 27499(S.D. Ohio Feb. 28, 2013) (focusing on the pre-lawsuit events that triggered abank’s duty to preserve data and suspend its automatic purging process, includ-ing a notice from the EEOC that it was investigating class allegations and arequest for information from the commission); YCB Int’l, Inc. v. UCF Trading Co,No. 09 C 7221, 2012 U.S. Dist. LEXIS 104875, *9–10 (N.D. Ill. July 25, 2012);Ervine v. S.B., No. 11 C 1187, 2011 U.S. Dist. LEXIS 24937 (N.D. Ill. Mar. 10,2011).

35. Abramowitz v. Inta-Bores Acres, Inc., No. 98-CV-4139 (ILG), 1999 U.S.Dist. LEXIS 20005, *7–8 (E.D.N.Y. Nov. 16, 1999) (citing Kronisch v. United

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There is a straightforward rationale for requiring parties to pre-serve relevant evidence before a lawsuit is filed: Absent a pre-litiga-tion duty to preserve, a party might be able to “subvert the discoveryprocess and the fair administration of justice” by destroying evidencebefore the potential litigant actually filed a claim.36

Many courts have held that a duty to preserve evidence may betriggered even in the absence of pre-litigation discussions or a historyof previous litigation, i.e., when litigation is foreseeable. Courts haveexpressed a number of “subtle variations” in standards for establish-ing when a pre-litigation duty to preserve evidence is triggered.37 Somecourts apply a two-prong test to determine whether a duty to preserveevidence exists for potential litigation, finding that “a duty exists. . . ifa reasonable person in the defendant’s position should have foreseenthat the evidence was material to a potential civil action.”38

States, 150 F.3d 112, 126 (2d Cir. 1998)); compare Kanyi v. United States, No. 99cv 5851(ILG), 2001 U.S. Dist. LEXIS 19814 (E.D.N.Y. 2001) (refusing to sanc-tion a party where documents were destroyed after the lawsuit had been filed butbefore service of the first requests for production of documents) with Stevensonv. Union Pac. R.R. Co., 354 F.3d 739 (8th Cir. 2004) (sanctioning railroad thatdestroyed voice tapes immediately after an accident where railroad knew suchtapes were relevant in earlier lawsuits).

36. Trevino, 969 S.W.2d at 955 (Baker, J., concurring).37. See also The Honorable Paul W. Grimm & Joel P. Williams, Ethical Issues

Associated with Preserving, Accessing, Discovering, and Using ElectronicallyStored Information, 14 FIDEL. L. J. 57 (OCT. 2008) (hereinafter Ethical IssuesAssociated with Preserving) (discussing three subtle variations in the pre-litiga-tion duty to preserve evidence).

38. Denton v. Northeast Ill. Reg’l Commuter R.R. Corp., No. 02C2220, 2004U.S. Dist. LEXIS 7234, *5–6 (N.D. Ill. 2004). As the court explained, “OneIllinois court has described this as a two-prong test for the existence of a dutyto preserve evidence: (1) the relationship prong; and (2) the foreseeabilityprong. Unless both prongs are satisfied, there is no duty to preserve evidence.”Id. (citing Andersen v. Mack Trucks, Inc., 793 N.E.2d 962, 967 (Ill. App. 2dDist. 2003)); see also Urban v. United States, No. 03C6630, 2005 U.S. Dist.LEXIS 428 (N.D. Ill. 2005) (same); Albertson’s, Inc. v. Arriaga, No. 04-03-00697-CV, No. 2004 Tex. App. LEXIS 8307 (Tex. App. 2004) (“a duty arises only whena party knows, or reasonably should know, that there is a substantial chancethat a complaining party will file a claim and that the party possesses or con-trols material evidence relevant to that claim”). But see Royal & SunAlliance v.Lauderdale Marine Ctr., 877 So. 2d 843, 846 (Fla. Dist. Ct. App. 2004) (notingthat Florida courts have held that there is no duty to preserve evidence whenlitigation is merely anticipated).


Other courts have held that once a party knows that informationmay be relevant to a reasonably foreseeable claim, a duty to preservesuch evidence arises.39 For instance, in the oft-cited Zubalake deci-sion, the court found that an employer had a duty to preserve certainelectronic records destroyed before an employee ever filed a chargeof discrimination,40 which would have triggered a statutory duty topreserve evidence. Acknowledging that a duty to preserve evidencedoes not arise “[m]erely because one or two employees contemplatedthe possibility that a fellow employee might sue,” the Zubalake courtexplained that in this case “it appears that almost everyone associatedwith [the employee] recognized the possibility that she might sue. . . .”Consequently, the court held that the duty to preserve attached at thetime that litigation was “reasonably anticipated,” and that the relevantpeople at the employer anticipated litigation months before the em-ployee filed her charge of discrimination.41

Still other courts have held that “a party to civil litigation has aduty to preserve relevant information, . . . when that party ‘has notice

39. Mary Kay Brown & Paul D. Weiner, Digital Dangers: A Primer on Elec-tronic Evidence in the Wake of Enron, 74 PA. BAR ASSN. Q. 1, 3 (Jan. 2003). See,e.g., Silvestri, 271 F.3d at 591; Kronisch v. United States, 150 F.3d 112, 126 (2dCir. 1998) (“This obligation to preserve evidence arises when the party has noticethat the evidence is relevant to litigation . . . as for example when a party shouldhave known that the evidence may be relevant to future litigation.”); MOSAIDTechs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 336 (D.N.J. 2004) (findingthat a litigant “is under a duty to preserve what it knows, or reasonably shouldknow, will likely be requested in reasonably foreseeable litigation”); Scott v.IBM Corp., 196 F.R.D. 233, 249 (D.N.J. 2000) (same). See also United States v.Rockwell Int’l, 897 F.2d 1255, 1266 (3d Cir. 1990) (holding to shield attorneywork product, “[l]itigation need not be imminent . . . as long as the primarymotivating purpose behind the creation of the document was to aid in possiblefuture litigation”); Mathias v. Jacobs, 197 F.R.D. 29, 37 (S.D.N.Y. 2000) (“duty topreserve arises when a party . . . anticipates litigation”).

40. Zubulake, 220 F.R.D. 212.41. Id. at 217. See also EEOC v. Fry’s Elecs., Inc., 874 F. Supp. 2d 1042

(W.D. Wash. 2012) (imposing an adverse inference sanction for destroying docu-ments and computer hard drives because the employer had notice of its duty topreserve this evidence once the employee mentioned he was going to the EEOC);Barsom v. NYC Housing Auth., 202 F.R.D. 396, 400 (S.D.N.Y. 2001) (holdingplaintiff had a duty to preserve recording of a key conversation with her bossbecause she “knew or should have known that it was reasonably foreseeablethat the tape would be relevant in future litigation,” and she already had con-sulted an attorney).

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that the evidence is relevant to litigation or . . . should have knownthat the evidence may be relevant to future litigation.’”42 One circuitcourt has suggested that a party has a duty to preserve evidence be-cause it knows, or should have known, “that litigation was imminent,”43

but this decision may have been over read.44

In a pair of significant cases discussing when a litigant’s preserva-tion duty is triggered, the Federal Circuit refused to “sully the flexiblereasonably foreseeable standard with [a] restrictive gloss” that wouldrequire a showing that a person reasonably foresee that “litigation wasimminent.” Rather, the court explained:

[w]hen litigation is “reasonably foreseeable” is a flexible fact-specific standard that allows a district court to exercise thediscretion necessary to confront the myriad factual situationsinherent in the spoliation inquiry. This standard does not trig-ger the duty to preserve documents from the mere existence ofa potential claim or the distant possibility of litigation. How-ever, it is not so inflexible as to require that litigation be “im-minent, or probable without significant contingencies,” as [thedefendant] suggests. [The defendant’s] proposed gloss on the“reasonably foreseeable” standard comes from an overly gen-erous reading of several cases. [These cases] merely notedthat imminent litigation was sufficient, not that it was neces-sary for spoliation, . . . This court declines to sully the flexiblereasonably foreseeable standard with the restrictive gloss pro-posed by [the defendant] in light of the weight of contraryauthority and the unnecessary generosity that such a glosswould extend to alleged spoliators. 45

42. John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008); Fujitsu Ltd., 247 F.3dat 436 (“The obligation to preserve evidence arises when the party has noticethat the evidence is relevant to litigation or when a party should have known thatthe evidence may be relevant to future litigation.”).

43. Burlington Northern & Santa Fe Ry. v. Grant, 505 F.3d 1013, 1032 (10thCir. 2007).

44. See United States ex rel. Baker v. Cmty. Health Sys., No. 05-279 WJ/ACT,2012 U.S. Dist. LEXIS 146865 (D.N.M. Aug. 31, 2012).

45. Micron Tech., 645 F.3d at 1320-1321 (internal citations omitted). Two ofthe cases on which the defendant relied to support its assertion that litigation mustbe imminent were Burlington N. & Santa Fe Ry. Co., 505 F.3d at 1032 (noting that“[a] spoliation sanction is proper where . . . a party has a duty to preserve evidencebecause it knew, or should have known, that litigation was imminent. . .”) (emphasis


The Micron court pointed out that “it would make little sense toenjoin document destruction only when the party clears all the hurdleson the litigation track, but endorse it when the party begins the raceunder the reasonable expectation of clearing those same hurdles.” Thecourt held that “the proper standard for determining when the duty topreserve documents attaches is the flexible one of reasonably foresee-able litigation, without any additional gloss.”46

OTHER SOURCES OF THE DUTY TO PRESERVE EVIDENCE

In addition to the duty that arises from foreseeable or reasonably an-ticipated litigation, a duty to preserve evidence independently mayarise from a contract, a statute or regulation, a document retentionpolicy, or in the case of attorneys, ethical duties. A duty to preservecreated by these legal, contractual, ethical or voluntarily assumed ob-ligations may exist before litigation is contemplated, or may arise outof a pre-suit agreement to preserve evidentiary material.

There are a number of federal and state statutes and regulationsthat impose record-keeping obligations on individuals and organiza-tions, requiring companies to retain certain categories of documentsfor specified periods of time.47 Some statutes and regulations alsospecify the required sanction for document destruction in violation of

added); and Trask-Morton, 534 F.3d at 681 (citing Burlington for the propositionthat “courts have found a spoliation sanction to be proper only where a party hasa duty to preserve evidence because it knew, or should known, that litigation wasimminent,” but holding that “Motel 6 had no reason to suspect litigation until—at the earliest—Morton’s attorney sent Motel 6 a demand letter” after the allegedspoliation (emphases added)).

After the Federal Circuit’s decision in Micron, a New Mexico districtcourt observed that when the Tenth Circuit court stated in Burlington Northernthat spoliation sanctions were appropriate when the offending party knew thatlitigation was “imminent,” the Burlington Northern court cited a case where theproduct at issue was destroyed when litigation was in fact imminent. The NewMexico district court “believe[d] the Tenth Circuit’s choice of the word “immi-nent” reflected that fact, rather than creating a standard different from the “virtu-ally universal standard” of “reasonably foreseeable.” The district court then appliedthe reasonably foreseeable analysis to the case before it. United States ex rel.Baker, 2012 U.S. Dist. LEXIS 146865.

46. Micron Tech., 645 F.3d at 1321. See also Ethical Issues Associated withPreserving, supra note 37.

47. Although a comprehensive list of these laws is beyond the scope of thisbook, select statutory record-keeping requirements are discussed in Chapter 6.

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48. 41 C.F.R. § 60-741.80(2012).49. 18 U.S.C. § 1520(a)(1)(2002).50. See Chapters 2 and 3.51. Among other things, ABA Model Rule 3.4 prohibits a lawyer from unlaw-

fully obstructing another party’s access to evidence, unlawfully altering, destroy-

these laws when that destruction results in documents being unavail-able in civil litigation. These statutes and regulations typically permitthe opposing party to obtain an adverse inference instruction.

For example, regulations governing the Office of Federal Compli-ance Programs include a record-keeping requirement at § 60-741.80of Title 41 of the Code of Federal Regulations. This provision requiresthat personnel and employment records made by a covered contractorbe preserved for at least two years from the date of the record or thepersonnel action involved, whichever occurs later. This regulation pro-vides that failure to preserve such records may result in a presumptionthat the information destroyed or not preserved would have beenunfavorable to the party that failed to retain the records. This pre-sumption does not apply if the contractor can establish that the de-struction or failure to preserve resulted from circumstances outside ofhis control.48

Likewise, the Sarbanes-Oxley Act of 2002 imposes certainrecordkeeping requirements on corporate entities and creates penal-ties for failure to comply with these requirements. Among other things,the Act requires that “[a]ny accountant who conducts an audit of anissuer of securities to which section 10A(a) of the Securities ExchangeAct of 1934 applies, shall maintain all audit and review work papersfor a period of 5 years from the end of the fiscal period in which theaudit or review was concluded.”49

As discussed in Chapter Two, a company also may have imposedobligations on itself by creating and implementing a document reten-tion policy requiring preservation of categories of data and documentsfor a specified time period. A company’s failure to retain documentsas required by its record retention policy, or to suspend the policy inlight of pending litigation, can result in substantial sanctions.50

In addition, involvement in spoliation may subject attorneys tosanctions for violation of ethical rules or codes. For example, theAmerican Bar Association Model Rule of Professional Conduct 3.4prohibits a lawyer from unlawfully altering, destroying, or conceal-ing documents or other material having potential evidentiary value.51


And the ABA recently amended the comment to the model rule re-quiring competence to state that “[t]o maintain the requisite knowl-edge and skill, a lawyer should keep abreast of changes in the lawand its practice, including the benefits and risks associated with rel-evant technology.”52

SCOPE OF THE DUTY TO PRESERVE

Once a party has notice that litigation has been filed, courts uniformlyimpose a duty to preserve potentially relevant evidence on parties tothe lawsuit.53 The duty “includes an obligation to identify, locate, andmaintain, information that is relevant to specific, predictable, and iden-tifiable litigation.”54 The duty applies only to relevant data, documentsand things.55

One of the earliest cases delineating the scope of a party’s duty topreserve evidence is William T. Thompson Company v. General Nutri-tion Corporation.56 There, the plaintiff served the defendant with re-quests for production of documents shortly after filing suit. The courtfound the defendant had destroyed records, including electronicrecords, despite having pre-suit notice of their relevance in subse-quent potential litigation. The court explained a litigant’s duty to re-tain relevant documents:

ing or concealing a document or other material that has evidentiary value, orcounseling or assisting another person to take any such action. This ethicalobligation also requires a lawyer to make a “reasonably diligent effort to complywith a legally proper discovery request.”

52. ABA Model Rule 1.1, at comment (emphasis added).53. Trevino, 969 S.W.2d at 954–55. Courts take seriously failure to suspend

routine document destruction. See, e.g., State Nat’l Ins. Co. v. County of Camden,No. 08-cv-5128, 2012 U.S. Dist. LEXIS 38504 (D.N.J. Mar. 21, 2012) (sanction-ing a party for failing to issue a litigation hold, suspend auto-deletion of email,or retain copies of any backup tapes after being notified about a lawsuit againstit, even though there was no evidence of actual spoliation of evidence); but seeSteuben Foods, Inc. v. Country Gourmet Foods, LLC, No. 08-CV-561S(F), 2011U.S. Dist. LEXIS 43145 (W.D.N.Y. 2011) (“[F]or sanctions to be appropriate, it isa necessary but insufficient condition that the sought-after evidence actuallyexisted and was destroyed.”) (emphasis in original and citations omitted).

54. See Victor Stanley, Inc., 269 F.R.D. at 522 (citations omitted).55. Id. (citing Pension Comm., 685 F. Supp. 2d at 464).56. 593 F. Supp. 1443 (C.D. Cal. 1984), aff ’d, 104 F.R.D. 119 (C.D. Cal.

1985).

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While a litigant is under no duty to keep or retain every docu-ment in its possession once a complaint is filed, it is under aduty to preserve what it knows, or reasonably should know, isrelevant in the action, is reasonably calculated to lead to dis-covery of admissible evidence, is reasonably likely to be re-quested during discovery, and/or is the subject of a pendingdiscovery request.57

William Thompson demonstrates the general rule in preservingevidence, that “[a] ‘potential spoliator’ need do only what is reason-able under the circumstances’58 and does not have a duty to “takeextraordinary measures to preserve evidence. . . .”59 Of course, anorganization need not preserve every shred of paper, every e-mail,text message or other electronically stored information once it recog-nizes the threat of litigation. “At the same time, anyone who antici-pates being a party or is a party to a lawsuit must not destroy unique,relevant evidence that might be useful to an adversary.”60 As one lead-ing authority explained, relevant records include:

57. Id. at 1455. See also Howell v. Maytag, 168 F.R.D. 502, 505 (M.D. Pa.1996) (“A party which reasonably anticipates litigation has an affirmative dutyto preserve relevant evidence.”); Toste, 1996 U.S. Dist. LEXIS 2359, at *8 (“Assoon as a potential claim is identified, a litigant is under a duty to preserveevidence which it knows or reasonably should know is relevant to the action.”)(citation omitted); Colfer v. Southwest Builders & Dev. Co., 832 P.2d 383, 385(Nev. 1992) (“[E]ven where an action has not been commenced and there is onlya potential for litigation, the litigant is under a duty to preserve evidence whichit knows or reasonably should know is relevant to the action.”) (citation omitted).

58. Hirsch v. General Motors Corp., 628 A.2d 1108, 1122 (N.J. Super. Ct. LawDiv. 1993) (quoting County of Solano v. Delancy, 264 Cal. Rptr. 721, 731 (Cal.Ct. App. 1989), opinion withdrawn, No. S013565, 1990 Cal. LEXIS 488 (Feb. 1,1990)). See also Baliotis, 870 F. Supp. at 1290 (quoting Fire Ins. Exch. v. ZenithRadio Corp., 747 P.2d 911, 914 (Nev. 1987) (“litigant is under a duty to preserveevidence which it knows or reasonably should know is relevant to the action”));Willard v. Caterpillar, Inc., 48 Cal. Rptr. 2d 607, 625–26 (Cal. Ct. App. 1995)(noting that some courts impose discovery sanctions only if party is on noticethat documents are potentially relevant).

59. Id. See J. Kinsler & A. MacIver, Demystifying Spoliation of Evidence, 34TORT AND INS. PRAC. L.J., 761, 768 (1999) (observing that “[t]he critical legalquestion, . . . is whether the litigation was reasonably foreseeable at the time thediscoverable documents were destroyed. The existence of a legal duty dependson the answer to this . . . question.”).

60. Zubulake, 220 F.R.D. at 217.


any documents or tangible things (as defined by Rule 34(a))made by individuals “likely to have discoverable informationthat the disclosing party may use to support its claims or de-fenses.” The duty also includes documents prepared for thoseindividuals, to the extent those documents can be readily iden-tified. . . . The duty also extends to information that is relevantto the claims or defenses of any party, or which is “relevant tothe subject matter involved in the action.” Thus, the duty topreserve extends to those employees likely to have relevantinformation—the “key players” in the case.61

Not only must documents and records be preserved, “in the worldof electronic data, the preservation obligation is not limited simply toavoiding affirmative acts of destruction.”62 Many computer systemshave automatic deletion features that periodically purge electronicdocuments, so once the duty to preserve is triggered, a party must alsotake active steps to halt any automatic deletion process.63

Leading commentators have declined to define the scope of thepreservation obligation more precisely. After identifying the basic scopeof the duty, one authority explained that “the duty to preserve evi-dence should not be analyzed in absolute terms; it requires nuance,”because the duty “’cannot be defined with precision.’”64 Rather, a court

61. Victor Stanley, 269 F.R.D. at 522 (quoting Zubulake, 220 F.R.D. at 217–218). See also Broccoli v. Echostar Communications Corp., 229 F.R.D. 506, 510(D. Md. 2008) (“The duty to preserve encompasses any documents or tangibleitems authored or made by individuals likely to have discoverable informationthat the disclosing party may use to support is claims or defenses.”).

62. Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 175–76(S.D.N.Y. 2004).

63. Id. See also Vagenos v. LDG Fin. Services, LLC, 2009 U.S. Dist. LEXIS121490 (E.D.N.Y. Dec. 31, 2009) (imposing an adverse inference instruction forfailure to preserve voice mail messages on a cell phone). In some cases, it “may bereasonable for a party to not stop or alter automatic electronic document manage-ment routines when the party is first notified of the possibility of a suit.” Jones v.Bremen High Sch. Dist. 228, No. 08 C 3548, 2010 U.S. Dist. LEXIS 51312, *16–17 (N.D. Ill. May 25, 2010) (citing Cache LaPoudre, Inc. v. Land O’Lakes, Inc.,244 F.R.D. 614, 624 (D. Colo. 2008)). What is required is “positive action topreserve material evidence.” Id. (citing Danis v. USN Communs., Inc., No. 98 C7482, 2000 U.S. Dist. LEXIS 16900 (N.D. Ill. Oct. 20, 2000)).

64. Victor Stanley, 269 F.R.D. at 522 (citing Advanced Issues in ElectronicDiscovery, 37 U. BALT. L. REV. at 393 (quoting Shira A. Scheindlin, MOORE’S FEDERAL

PRACTICE E-DISCOVERY: THE NEWLY AMENDED FEDERAL RULES OF CIVIL PROCEDURE 7.28

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will determine whether under the circumstances a party’s preservationefforts were reasonable—with “reasonableness and good faith” beingthe key issues.65

Some cases have found that whether a party’s preservation con-duct is acceptable depends on what is reasonable, which “in turn de-pends whether what was done—or not done—was proportional tothat case and consistent with clearly established applicable standards.”66

Other courts have observed that “this standard may prove too amor-phous” to provide much comfort to a party deciding what it may dis-card, delete or recycle. These courts have rejected this “highly elasticconcept” until a more precise definition is created by rule. 67

Discussing this concept, one court observed that in the context ofpreservation “[r]easonableness and proportionality are surely goodguiding principles” for considering a preservation order, or evaluatinga party’s efforts at preservation after the fact. But the court cautionedthat in the absence of a court-imposed preservation order, a party iswell-advised to “retain all relevant documents. . . . in existence at thetime the duty to preserve attaches.”68 Because “relevance” is given an

(2006))). See also Advanced Issues in Electronic Discovery, 37 U. BALT. L. REV. at394–97 (commenting on the scope of the preservation obligation).

65. Id.; The Sedona Conference Commentary on Legal Holds, supra note 2, at269.

66. Victor Stanley, 269 F.R.D. at 522 (quoting Rimkus Consulting Group,Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010)) (emphasis inoriginal). See FEDERAL JUDICIAL CENTER FEDERAL JUDICIAL CENTER, BENCHBOOK FOR U.S.DISTRICT COURT JUDGES (6th ed. 2013), available at http://www.fjc.gov/public/pdf.nsf/lookup/Benchbook-US-District-Judges-6TH-FJC-MAR-2013-Public.pdf/$file/Benchbook-US-District-Judges-6TH-FJC-MAR-2013-Public.pdf. § 6.01Civil Case Management, at 195 (suggesting that the time for addressing propor-tionality in a civil action may be at the initial case management conference whena district court may place limits on discovery, including: “identifying whetherdiscovery should initially focus on particular issues that are most important toresolving the case”; “phasing discovery so that the parties initially focus on thesources of information that are most readily available and/or most likely to yieldkey information”; “limiting the number of custodians and sources of informationto be searched”; and “otherwise modifying the type, amount, or timing of discov-ery to achieve proportionality.”)

67. Orbit One Communs. v. Numerex Corp., 271 F.R.D. 429, 436 (S.D.N.Y.2010); Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM) (JLC), 2011 U.S. Dist.LEXIS 116427, *16–17 (S.D.N.Y. Oct. 7, 2011).

68. Id. See generally The Sedona Conference, The Sedona Conference Com-mentary on Proportionality in Electronic Discovery (Jan. 2013), available at


exceedingly broad scope under the Federal Rules of Civil Procedureand analogous state rules,69 the breadth of permitted discovery meritscareful consideration by those contemplating preservations obligations.

To ensure that “relevant evidence” is not destroyed or discarded, aparty must determine what potentially relevant evidence should bepreserved. Once litigation has commenced, potentially relevant evi-dence can be ascertained from the complaint, from discovery requests,or from a preservation order. If no lawsuit has been filed, a potentialdefendant may be put on notice of what may be relevant from a de-mand letter or other correspondence from a potential adversary, or itmay have notice through a pattern of complaints received in the pastregarding the particular product.70

Even though parties must take reasonable steps to preserve rel-evant evidence, they are not required to make extraordinary efforts toretain evidence. Sometimes it is impossible or impractical for a partyto retain all of the relevant evidence. In determining whether non-retention of a particular item of evidence is reasonable, courts weighsuch factors as disruption of business operations, safety, expense, andwhether the evidence in question is bulky or difficult to store.

For example, in Conderman v. Rochester Gas & Electric Corpo-ration,71 utility poles fell onto a pick-up truck and power lines fromthe downed poles injured them as they were driving. The defendantutility company sent emergency crews to the scene. In the process ofclearing the road, the crews cut the poles into four foot pieces andremoved them to a landfill. After filing a lawsuit, the truck driver movedfor summary judgment based on alleged spoliation of evidence by theutility company. The trial court granted the motion, essentially pre-cluding the utility company from offering evidence to rebut a pre-sumption of negligence.72

The appellate court reversed the grant of summary judgment onspoliation. It reasoned that the utility company was “responding to an

https://thesedonaconference.org/system/files/sites/sedona.civicactions.net/files/private/drupal/filesys/publications/%20Sedona%20Conference%20Commentary%20on%20Proportionality%20January%202013.pdf.

69. See, e.g., Corrigan v. Methodist Hosp., 158 F.R.D. 54, 57 (E.D. Pa. 1994)(“Relevance for discovery purposes is defined broadly.”).

70. Lewy v. Remington Arms Co., 836 F.2d 1104 (8th Cir. 1988).71. 262 A.2d 1068 (N.Y. 1999).72. Id. at 1068–69.

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emergency situation that affected public safety, and it would be unrea-sonable to have imposed upon [it] at the time the duty to preserveevidence, anticipating the possibility of future litigation.”73

Courts will consider the surrounding circumstances to determinewhether it was reasonable for the party not to retain the evidence inquestion.74 Convolve, Inc. v. Compaq Computer Corporation75 is illus-trative. There, a technology company shared certain proprietary infor-mation with the manufacturers of a disk drive and a computer producerand distributor. The technology company claimed the recipients misap-propriated its trade secrets and infringed on its patents and sought sanc-tions against them for alleged spoliation of certain electronic data orwave forms used to evaluate the performance of disk drives. Rejectingthe sanction request, the Convolve court explained:

[T]he preservation of the wave forms in a tangible state wouldhave required heroic efforts far beyond those consistent with[the computer maker’s] regular course of business. To be sure,as part of a litigation hold, a company may be required tocease deleting e-mails, and to disrupt its normal documentdestruction protocol. But e-mails, at least, have some semi-permanent existence. . . . By contrast, the data at issue here areephemeral. They exist only until the tuning engineer makesthe next adjustment, and then the document changes. No busi-ness purpose ever dictated that they be retained, even briefly.76

73. Id. at 1069.74. See, e.g., Zubulake, 220 F.R.D. 217 (“Must a corporation, upon recog-

nizing the threat of litigation, preserve every shred of paper, every e-mail orelectronic document, and every back-up tape? The answer is clearly, ‘no.’ Sucha rule would cripple large corporations . . . .”); Conderman, 262 A.2d at 1069(finding public safety justified failure to preserve evidence); Sanchez v. Stanley-Bostitch, Inc., No. 98 Civ. 0494, 1999 U.S. Dist. LEXIS 12975 (S.D.N.Y. Aug.23, 1999) (finding that plaintiff’s retention of counsel who directed that cer-tain evidence be photographed suggested plaintiff had a duty to preserve evi-dence); Concord Boat Corp. v. Brunswick Corp., No. LR-C-95-791, 1997 U.S.LEXIS 24068 (E.D. Ark. Aug. 29, 1997) (explaining “to hold that a corporationis under a duty to preserve all e-mail correspondence potentially relevant toany future litigation would be tantamount to holding that the corporation mustpreserve all e-mail. . . . Such a proposition is not justified.”).

75. 223 F.R.D. 162 (S.D.N.Y. 2004).76. Id. at 177. Among other authorities the court referenced was the proposed

FED. R. CIV. P. 37(f), which imposes some limits on the authority of district courtsto sanction the destruction of electronically stored information.


On occasion a party may opt to retain photographs, videotapes,test results, or other “secondary evidence,” rather than the actual physi-cal evidence. In these situations, the non-spoliating party may arguethat the failure to preserve the original evidence constitutes unlawfulspoliation and that the secondary evidence is an inadequate substitute.Some courts have accepted this argument and excluded testimonybased on the missing evidence.

For example, in Cincinnati Insurance Company v. General Mo-tors Corporation,77 an insurer filed suit against an automobile manu-facturer, alleging that a defective motor vehicle caused a fire thatdamaged its insured’s home. After the insurance company’s experthad examined the vehicle, someone destroyed the car but not theblower motor. Before it was destroyed, the insurer’s expert photo-graphed the vehicle and the surrounding area. Although the insurergave the manufacturer’s expert the photographs, that expert opinedthat he could not determine the origin and cause of the fire withoutexamining the entire vehicle and possibly the area where the vehiclehad been parked.

The trial court granted the manufacturer’s sanctions motion andexcluded the insurer’s expert testimony. Thereafter, it granted sum-mary judgment because without the expert testimony, the insurer couldnot prove its case. In affirming the trial court’s decision, the court ofappeals rejected the insurer’s contention that its photographs providedthe manufacturer with an adequate substitute for the destroyed evi-dence, explaining that the physical evidence itself is far more proba-tive under these circumstances:

The physical object itself in the precise condition immediatelyafter an accident may be far more instructive and persuasiveto a jury than oral or photograph descriptions.78

As another example, in Dillon v. Nissan Motor Company, Ltd.,79

the district court imposed sanctions barring testimony by the expertthat inspected the allegedly defective vehicle and excluding any evi-

77. No. 940T017, 1994 Ohio App. LEXIS 4960 (Ohio Ct. App. Oct. 28, 1994).78. Id. at *13–14 (quoting American Family Ins. Co. v. Village Pontiac-GMC,

Inc., 585 N.E.2d 1115, 1118 (Ill. App. Ct. 1992)); see also State Farm Fire & Cas.Co. v. Frigidaire, 146 F.R.D. 160, 163 (N.D. Ill. 1992).

79. 986 F.2d 263 (8th Cir. 1993).

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dence derived from his inspection, including photographs of the ve-hicle. In rejecting the photographic evidence, the district court foundthe photographs were not comprehensive, were blurred, and failed todocument the condition of crucial areas of the allegedly defectivelydesigned vehicle.80

Although there may be occasions when discarding evidence iswarranted, before deciding to discard evidence, consider the remarksa court made after an expert discarded evidence and then tried to sub-stitute photographs and oral testimony for the missing evidence:

Plaintiffs were the only individuals with first-hand knowledgeof the physical evidence which is far more probative under thesecircumstances in determining whether the [product] caused thefire than photographs and two wires taken from [the product]. .. . As a matter of sound public policy, an expert should not bepermitted intentionally or negligently to destroy such evidenceand then substitute his or her own description of it.81

These cases teach that a party who decides to discard relevantevidence because it is impractical or impossible to retain will bear theburden of showing that it did all that it could to provide a prospectiveadverse party with an opportunity to inspect the evidence before itelected to “preserve” that evidentiary material by photographs or othersecondary means. At a minimum, a party faced with that issue shouldprovide a potentially adverse party an opportunity for inspection orreview before relevant evidence is destroyed.82

THE OBLIGATION TO SUPERVISE PRESERVATION

Courts have increasingly indicated that counsel must take affirmativesteps to ensure their litigation clients comply with the duty to preserve

80. Id. at 268.81. State Farm Fire & Cas. Co., 146 F.R.D. at 163.82. Baliotis, 870 F. Supp. at 1290-91. See also Kraft Reinsurance Ireland,

Ltd. v. Pallet Acquisitions, LLC, 843 F. Supp. 2d 1318 (N.D. Ga. 2011) (findingan insurance company’s failure to take any measures to preserve any samples ofthe evidence or provide a pallet company the opportunity to inspect contami-nated shipping containers before they were incinerated a breach of the insurer’sduty to preserve evidence).


evidence.83 The required steps and limits of counsel’s or of a litigant’sduty are not always clear.84

Some courts have placed the obligation to preserve evidence onthe “party,” not on counsel. These courts have observed that “[i]f aparty has taken reasonable steps to preserve evidence, its attorney’salleged failures to take additional steps should be of no consequence.”85

83. See, e.g., Day v. LSI Corp., No. CIV 11-186-TUC-CKJ, 2012 U.S. Dist.LEXIS 180319 (Dec. 20, 2012) (sanctioning defendant after determining in-house counsel’s efforts to supervise preservation and production of relevant evi-dence so inadequate counsel acted “willfully”); Play Visions, Inc. v. Dollar TreeStores, Inc., No. C09-1769 MJP, 2011 U.S. Dist. LEXIS 61636 (W.D. Wash. June8, 2011) (requiring counsel to “make reasonable inquiry into whether his client’sdiscovery responses are adequate and to familiarize himself with the documentsin the client’s possession”); GFI Acquisition, LLC v. Am. Feder. Title Corp. (In reA&M Fla. Props. II, LLC), No. 09-15173, 2010 Bankr. LEXIS 1217 (S.D.N.Y. Apr.7, 2010) (explaining that counsel must take affirmative steps to identify allsources of information and to “become fully familiar with [the] client’s documentretention policies . . . and data retention architecture.”); Wm. A. Gross Constr.Assoc., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009) (stating“[i]t is time that the Bar—even those lawyers who did not come of age in thecomputer era—understand” the preservation and production of electronicallystored information”).

84. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012) (reject-ing “the notion that a failure to institute a ‘litigation hold constitutes grossnegligence per se’. . . [and] agree[ing] that ‘the better approach is to consider [thefailure to adopt good preservation practices] as one factor’ in the determinationof whether discovery sanctions should issue”); contra Pension Comm., 685 F.Supp. 2d at 464–65 (holding that the failure to issue a litigation hold is grossnegligence per se); cf. Steuben Foods, Inc. v. Country Gourmet Foods, LLC, No.08-cv-561S(F), 2011 U.S. Dist. LEXIS 43145 (W.D.N.Y. Apr. 21, 2011) (findingan oral litigation hold was adequate given the company’s relative size).

85. Centrifugal Force, Inc. v. Softnet Commun., Inc., 783 F. Supp. 2d 736, 742(S.D.N.Y. 2011) (citing Fujitsu Ltd., 247 F.3d at 436); Kronisch, 150 F.3d at 126.Some recent district court decisions focus on reasonableness as the key to deter-mining whether a party breached its duty to preserve evidence, but these courtsrequire more than good intentions. A party’s intentions must be followed up withspecific actions that are calculated to ensure preservation of relevant materials.See, e.g., Carrillo v. Schneider Logistics, Inc., No. CV 11-8557-CAS (DTB), 2012U.S. Dist. LEXIS 146903 (D. Cal. Oct. 5, 2012) (concluding that defendant failed totake adequate steps to preserve relevant documents, in part because the litigationhold memorandum it issued failed to instruct employees to retain an entire cat-egory of relevant electronic documents); Banks v. Enova Fin., No. 10 C 4060, 2012U.S. Dist. LEXIS 173649, *10–11 (N.D. Ill. July 10, 2012) (“A party fulfills its dutyto preserve evidence if it acts reasonably.”) (quoting Jones, 2010 U.S. Dist. LEXIS

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51312, *6); Danis v. USN Communs., Inc., No. 98 C 7482, 2000 U.S. Dist. LEXIS16900, *38 (N.D. Ill. Oct. 20, 2000) (“a party’s intentions must be followed upwith concrete actions reasonably calculated to ensure that relevant materials arepreserved”).

86. Telecom Int’l Am., Ltd. v. AT&T Corp., 189 F.R.D. 76, 81 (S.D.N.Y. 1999);Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004); HuntsvilleGolf Dev., Inc. v. Brindley Constr. Co., No. 1:08-00006, 2011 U.S. Dist. LEXIS86445 (M.D. Tenn. Aug. 4, 2011). See, e.g., Du Pont de Nemours & Co. v. KolonIndus., 803 F. Supp. 2d 469, 501 (E.D. Va. 2011) (noting that even though defen-dant and its counsel issued two litigation hold notices within a week of learningof plaintiff’s complaint, the company failed to provide sufficient instruction toemployees about the importance of preserving relevant files and email items andthe notice it issued was insufficient because it was sent only to upper-levelemployees).

87. Zubulake, 229 F.R.D. 422. See also Roland Goss, Hot Issues in ElectronicDiscovery: Information Retention Programs and Preservation, 42 TORT TRIAL &INS. PRAC. L.J. 797, 816 (2007) (listing steps courts have mentioned that could havebeen taken to institute a legal hold and citing cases); The Sedona ConferenceCommentary on Legal Holds, supra note 2, at 267 (discussing preservation obliga-tions and legal holds); Robert E. Shapiro, Advance Sheet: Conclusion Assumed, 36

Other courts have emphasized that counsel has a key role, ex-plaining that “once on notice, the obligation to preserve evidence runsfirst to counsel, who then had a duty to advise and explain to the clientits obligations to retain pertinent documents that may be relevant tothe litigation.”86 The Zubulake decision, for instance, underscored cer-tain duties of counsel to parties to litigation “designed to promote con-tinued preservation of potentially relevant evidence in the typical case,”including:

• Issuing a legal or litigation hold letter to the company offi-cials at the outset of litigation or whenever it is reasonablyanticipated;

• Communicating directly with “key players,” i.e., the indi-viduals identified in a party’s initial disclosures, about theneed to preserve evidence in their possession;

• Periodically re-issuing litigation hold letters to employeesand reminding key employees that the preservation duty stillexists; and

• Instructing all employees to produce electronic copies of theirrelevant active files and make sure all back-up media is iden-tified and stored in a safe place.87


Another obligation courts impose on counsel is understanding aclient’s data storage and retrieval systems, since remaining ignorant tothe workings of those systems and practices can result in unantici-pated consequences for the client.88 Not only is a complete under-standing of a client’s record and data storage system essential to satisfyRule 26 disclosure obligations, it is critical to responding to argumentsregarding the burdens and costs associated with complying with dis-covery requests.89

GTFM, Inc. v. Wal-Mart Stores, Inc.90 is illustrative. There, plain-tiffs sought electronic data regarding local sales. Without consultingwith a representative from the information technology group, defensecounsel stated the data was no longer available and producing it wouldbe unduly burdensome because there was no centralized computercapacity to track it.91 A year later, plaintiffs deposed a vice-presidentfrom the company’s management information systems group who tes-tified the sales data could be tracked for up to one year. That meant theinformation had been available at the time of plaintiffs’ initial request.But because of the delay caused by counsel’s misrepresentation, itwas no longer available.

The GTFM court criticized defense counsel for failure to consultthe appropriate personnel observing “whether or not defendant’s coun-sel intentionally misled plaintiffs, counsel’s inquiries about defendants’computer capacity were certainly deficient. . . . As a vice president in[defendant’s management information systems] department, she wasan obvious person with whom defendant’s counsel should have re-

LITIG. 59 (Spring 2010) (criticizing rulemaking by a single court and suggestingthat rulemaking of this sort is better handled by the Supreme Court and the RulesAdvisory Committee).

88. For example, failure to accurately represent these issues can result incourts allowing on-site inspections of computer systems or the imposition ofsanctions. See, e.g., Simon Property Group, 194 F.R.D. 639 (requiring inspectionof hard drive after finding “some troubling discrepancies” in discovery responses);Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050 (S.D. Cal. 1999) (grantingaccess where party testified that relevant emails had been deleted and could notbe restored).

89. Virginia Llewellyn, Planning with Clients for Effective Electronic Dis-covery, THE PRAC. LITIGATOR, 7, 10 (July 2003) (“The best electronic discoveryresponse requires work well in advance of litigation.”).

90. No. 98 Civ. 7724, 2000 U.S. Dist. LEXIS 3804 (S.D.N.Y. Mar. 30, 2000).91. Id. at *5.

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viewed the computer capabilities.”92 As a result, the court ordered anon-site inspection at the company’s expense and required the com-pany to pay over $100,000 toward plaintiffs’ legal fees.

These cases suggest that counsel should take affirmative steps toensure their litigation clients take reasonable steps to preserve evi-dence once litigation is reasonably anticipated, keeping in mind thatthey may otherwise have to defend a failure to preserve evidence evalu-ated with the benefit of hindsight.93

OBLIGATIONS TO PRESERVE EVIDENCE IN THEPOSSESSION OF THIRD PARTIES

As a general rule, there is no duty to retain evidence to aid in futurelegal action against a third party94 “[a]bsent some special relationshipor duty arising by reason of an agreement, contract, statute, or otherspecial circumstance.”95 That said, a duty to preserve evidence mayextend beyond the parties themselves and include evidence entrustedto their agents, experts, insurers, attorneys, and the like. “Parties tolitigation are deemed to be in ‘control’ of information to which theyhave access or the legal right to obtain, even if it is actually in thepossession, custody or control of a third party.”96

92. Id. at *6.93. See Bozic v. City of Washington, No. 2:11-cv-674, 2012 U.S. Dist. LEXIS

172316 (W.D. Pa. Dec. 5, 2012).94. Wilson v. Beloit Corp., 921 F.2d 765 (8th Cir. 1990) (explaining that

absent special relationship or duty, no duty exists to preserve possible evidenceto aid in future legal action against third party).

95. Koplin v. Rosel Well Perforators, Inc., 734 P.2d 1177, 1179 (Kan. 1987).96. Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 514 (D. Md. 2009)

(addressing whether the duty to preserve extended to the additional third-partyconsultants retained by the defendant, and indicating that even if a party could notpreserve because he lacked ownership or control of the potential evidence, “he stillhas an obligation to give the opposing party notice of access to the evidence or ofthe possible destruction of the evidence if the party anticipates litigation involv-ing that evidence”); see also In re Flag Telecom Holdings, Ltd. Sec. Litig., 236F.R.D. 177, 180 (S.D.N.Y. 2006) (“The test for the production of documents iscontrol, not location . . . . Documents may be within the control of the party even ifthey are located abroad.”); Moreno v. Autozone, Inc., No. C-05-4432 CRB, 2008WL 906510, at *1 (N.D. Cal. Apr. 1, 2008) (“Control is generally defined as thelegal right to obtain the documents on demand and at times has been construedmore broadly to include the practical ability to obtain the documents sought upon


In such instances, a party may be held liable for spoliation com-mitted by a third party to whom it entrusted the destroyed evidence.For example, in Jordan F. Miller Corporation v. Mid-Continent Air-craft Service, Inc.,97 a buyer filed suit against the sellers of a jet air-craft. Shortly after purchase, the aircraft landing gear collapsed andseverely damaged the aircraft. The buyer hired a company to repairthe aircraft. Thereafter, the buyer filed suit against the sellers, and thebuyer’s insurer intervened.

The sellers served discovery requests, including a request that allof the aircraft component parts be made available for inspection ortesting. Ultimately, during the deposition of the president of the air-craft repair company, the sellers learned for the first time that all butone of the aircraft’s component parts had been destroyed.

The sellers filed a motion to dismiss based on spoliation of evi-dence. The buyers argued that only the insurer had a duty to preservethe landing gear, and that he had no such duty once it was in thepossession of the repair company. The court rejected this argument,explaining that the buyer remained responsible for preserving the air-craft parts:

[The buyer] knew that the damaged landing gear was relevantto his claims against [the sellers] and he, therefore, had a dutyto preserve the evidence. His argument that only [the repaircompany] had a duty to preserve the landing gear is misguided.[The repair company] did not enter the suit as a party until

demand.”) (citing Klesch & Co. v. Liberty Media Corp., 217 F.R.D. 517, 519 (D.Colo. 2003)); Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y.1992) (observing that courts have “interpreted Rule 34 [of the Federal Rules ofCivil Procedure] to require production if the party has the practical ability toobtain the documents from another, irrespective of his legal entitlement to thedocuments.”). See Joseph A. Nicholson, Plus Ultra: Third-Party Preservation ina Cloud Computing Paradigm, 8 HASTINGS BUS. L.J. 191, 218 (Winter 2012) (cit-ing Victor Stanley, 269 F.R.D. at 523–24) (explaining “cloud computing” andconcluding that it is “poised to create a future” where the custodians of electroni-cally stored information are non-parties to whom the duty to preserve “as pres-ently conceived does not effectively attach.”).

97. No. 97-5089, 1998 U.S. App. LEXIS 2739 (10th Cir. Feb. 20, 1998). Seealso Pirrello v. Gateway Marina, No. CV 2008-1798 (KAM) (MDG), 2011 U.S.Dist. LEXIS 113632 (E.D.N.Y. 2011) (finding a duty to preserve boat after acci-dent and noting “courts take a broad view of Rule 34(a) . . . in extending the dutyto anyone who has the practical ability to obtain evidence.”).

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almost a year after [the buyer] filed his complaint. Moreover,that [the repair company] may also have had a duty to pre-serve the evidence did not absolve [the buyer] of his duty topreserve evidence that was relevant to his own claims against[the seller].98

The court held that the buyer’s conduct provided a basis for sanctionsand, because the seller’s experts testified they could not render anopinion without the missing evidence, the trial court appropriately dis-missed the complaint.99

The third-party destruction of evidence issue also arises when rel-evant evidence has been turned over by a party to its insurer or expertretained to examine the evidence and to render an opinion. If the in-surer or expert loses the evidence or subjects it to destructive testing,then the party that relinquished the evidence may be held liable for itsloss. 100

Even where evidence is simply left in the possession of a party’sinsurer, if it is lost or destroyed, courts typically hold that the partyentrusting the evidence to the insurer retains the duty to preserve it.For example, in Thompson v. Owensby,101 the court held that the rela-tionship between the party and an insurance company in possessionof evidence favors a finding that the party had a duty to preserveevidence.

Courts also have found that when the party sought to be held li-able for spoliation could have informed the party in possession that alawsuit existed and requested the evidence be preserved, that partymay be held liable for spoliation.102

98. Id. at *18–19.99. Id. at *23.

100. See, e.g., Trull v. Volkswagen of Am., Inc., 187 F.3d 88 (1st Cir. 1999)(upholding exclusion of post-accident condition of vehicle because it was dis-carded by the insurance company and unavailable for inspection).

101. 704 N.E.2d 134 (Ind. Ct. App. 1998). See also Coleman Constr., Inc. v.Diamond State Ins. Co., CV 05-148-M-JCL, 2008 U.S. Dist. LEXIS 44735 (D.Mont. June 5, 2008) (noting an insurer’s relationship to a third-party claimantarises by virtue of the insurer’s obligations to investigate and evaluate claims madeby an insured, and “the insurer’s possession or control over evidence relative to theinsured’s claims,” which relationship “could warrant recognition of a duty [topreserve evidence] if the carrier knew or should have known of the likelihood oflitigation and of the claimant’s need for the evidence in the litigation.”).

102. Sanchez, No. 98 Civ. 0494, 1999 U.S. Dist. LEXIS 12975.


103. 710 A.2d 846 (D.C. App. 1998).104. Id. at 849.105. 976 P.2d 223 (Cal. 1999); cf. Oliver v. Stimson, 993 P.2d at 16–17 (recog-

nizing a cause of action for third-party spoliation).106. Temple Community, 976 P.2d at 229.

A somewhat related situation occurs when a party claims it hasbeen prejudiced by the loss or destruction of evidence and seeks tohold a third party liable for its loss. As discussed in Chapter Four,courts have taken conflicting positions on the issue of third-party li-ability for a spoliation tort. For example, in Holmes v. Amerex Rent-a-Car,103 the District of Columbia Court of Appeals considered whether,under District of Columbia law, a plaintiff may recover against a de-fendant who has negligently or recklessly destroyed, or allowed to bedestroyed, evidence that would have assisted the plaintiff in pursuinga claim against a third party. The court held that such a claim is cogni-zable, provided, however, that the party seeking to assert that claimcan establish the existence of a special relationship that would create aduty to preserve the evidence for use in future litigation.104

In contrast, the California Supreme Court considered a similar is-sue in Temple Community Hospital v. Superior Court of Los AngelesCounty,105 in which it determined whether a party may bring a tortclaim against a person who intentionally destroys evidence that wouldbe relevant in an underlying lawsuit to which the spoliator is not aparty. The court held that no cause of action exists against a third partyfor spoliation that affects the existing lawsuit because of concerns over“endless litigation.”106

Practice Tips

• Err on the side of caution, particularly when it is not inordi-nately expensive, cumbersome, or disruptive to one’s busi-ness, when deciding whether to preserve evidence. Thisrequires the parties and counsel to identify the time pe-riod, subject matter and locations of potentially relevantinformation.

• Provide litigants or prospective litigants with a reasonableopportunity to inspect and test the evidence before it isdestroyed if evidence cannot reasonably be retained. Keep

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a written record of any notice and opportunity to inspectgiven to a potentially adverse party.

• Make a photographic or videotape record of the evidence,if feasible, if any physical evidence must be discarded.

• Be sure no court order or discovery request requires pres-ervation of any data, document, or thing before discardingpotentially relevant evidence.

• Instruct third parties, including experts or insurers, not toalter, dispose of or destroy any data, documents or thingsturned over to them for storage, examination, or any otherpurpose without your express consent and confirm thatinstruction in writing.

• Bear in mind that when considering whether a particularpiece of documentary or physical evidence should be re-tained as relevant to potential litigation, the decision maybe reviewed by a court that has the benefit of hindsight.

• Promptly determine whether and to what extent an organi-zation should suspend its routine document retention pro-grams once litigation is reasonably anticipated orforeseeable.

• Take an active role in document preservation efforts, in-cluding issuing a legal or litigation hold, and following upwith company officials and in-house counsel throughoutthe litigation to ensure relevant records continue to be pre-served.

• Consider whether to retain a consultant or vendor to as-sist with preservation and/or production of electronicallystored information.

• Designate a person, e.g., a client records manager or in-formation technology manager, to be responsible for lo-cating, segregating and/or preserving hard copy andelectronically stored information.

• Make discovery requests for documents, electronicallystored information, and tangible things promptly.

• Monitor your client’s preservation practices by askingquestions. Pay attention to warning signs that a client has


not adequately searched for records, and be cautious aboutblindly accepting client assurances.

• Make sure that any retained expert keeps every docu-ment he or she writes or receives, even though thoserecords may not be subject to discovery, and include thatinstruction in correspondence retaining the expert.

• Keep contemporaneous records of what data has beenpreserved, collected and produced, when legal or litiga-tion hold notices were sent, and the identity of those whocan verify the timeliness and completeness of these ef-forts.

• Be mindful of ethical obligations under the applicable rulesor codes of professional responsibility when counselingclients regarding spoliation.

Record Retention andPreservation Measures

35

2“It wasn’t a smoking gun—it was a nuclear war-head.”1

Even in an era of electronically stored information it wouldbe the rare company that retained indefinitely all the data ordocuments that it received or generated. The expense alonewould be prohibitive. Although some information, like acompany’s historical documents, may be appropriate forpermanent retention, most data and documents need onlybe kept for a specific period of time and then, absent specialcircumstances, the information should be destroyed.2

There are many reasons for a company to implement arecord or document retention program.3 These include: (1)

1. J. GORELICK ET AL., DESTRUCTION OF EVIDENCE § 8.2, at 275 (2013)(citing Allen, U.S. Companies Pay Increasing Attention to Destroy-ing Files, WALL ST. J., Sept. 2, 1987, at 1) (quoting a company ex-ecutive commenting on the impact in a lawsuit of a box of documentsthat should have been destroyed years earlier had an employeecomplied with a company’s records retention policy).

2. See Joe Dysart, Ditching Dark Data, 99 A.B.A. J. 32 (April2013).

3. A few courts have expressly found that a large corporationcan discharge its duty to preserve evidence only by: “1) creating a‘comprehensive’ document retention policy that will ensure that rel-evant documents are retained, . . . and 2) disseminating that policy toits employees.” Chandler v. Buncich, No. 2:12 CV 175, 2012 U.S.